Boulder County clerk files response to lawsuit brought by AG

By Mitchell Byars, Camera Staff Writer

Posted:
07/08/2014 12:37:54 PM MDT

Jenn Rushneck, left, kisses her wife, Amy Rushneck, after obtaining their Colorado state marriage license Tuesday, July 8, 2014, at the Boulder County Clerk and Recorder's Office in Boulder. The couple has been together 14 years.
(Jeremy Papasso/Daily Camera)

Boulder County Clerk Hillary Hall argues that Colorado's gay marriage ban is "unconstitutional and unenforceable" in her response to a suit filed by the state attorney general seeking to stop her from issuing marriage licenses to same-sex couples.

In a response filed Monday, Hall said Attorney General John Suthers' office is forcing local officials to enforce a provision that will likely be proven unconstitutional in the wake of rulings in similar cases around the country.

"The state has all but admitted that, in the absence of a final Hail Mary decision from the United States Supreme Court that is contrary to the 23 courts that have thus far examined the constitutionality of state same-sex marriage bans, Colorado's marriage bans are unconstitutional and unenforceable," David Hughes, deputy Boulder County attorney, wrote in the motion. "This court should find that local officials — in particular Clerk Hall — should not be required to enforce unconstitutional laws while the cases against such laws wind their way through the court system."

Suthers filed suit last week asking for a temporary restraining order and preliminary injunction in an effort to stop Hall from issuing any more marriage licenses to same-sex couples and invalidating the more than 105 licenses her office has issued.

Hall started issuing marriage licenses to same-sex couples June 25 after a decision by the 10th U.S. Circuit Court of Appeals in Kitchen v. Herbert that struck down a gay marriage ban in Utah. Although a stay was issued in that decision, Boulder County's motion argues the ruling itself clearly establishes "marriage as a fundamental right that extends to same-sex couples."

"Colorado's ban is no different from Utah's ban in either form or substance, and the state has acknowledged as much, indicating that, because of Kitchen, the state would not oppose entry of a permanent injunction against enforcement of Colorado's ban if the mandate in Kitchen is no longer stayed," Hughes wrote. "Thus, the state is relying solely on the Tenth Circuit's stay of its mandate to attempt to force Clerk Hall to enforce an otherwise unconstitutional law.

"Hall ignores such laws at her peril," Hughes wrote. "Contrary to the state's position, Clerk Hall cannot fend off a challenge to her actions simply on the basis that a law is still on the books in Colorado."

University of Colorado School of Law professor Jennifer Hendricks said she agrees that the stay still leaves Hall open to a suit if she were to deny a same-sex couple a marriage license on that basis.

"A stay is not an order not to comply; it doesn't prevent voluntary compliance," Hendricks said. "A same-sex couple could sue (Hall) in federal court and look at the 10th Circuit Court decision very easily."

A three-hour hearing has been set for 9 a.m. Wednesday by Boulder District Judge Andrew Hartman.

The Colorado Attorney General's Office did not comment on Hall's filing.

A 'difficult' case

Filing for preliminary injunctive relief is designed to protect the plaintiff, in this case the state of Colorado, and to preserve the power of the court to render a decision following a full trial.

In order to get the temporary restraining order, the state must prove that there is a reasonable chance the marriage ban will ultimately be proven constitutional and that Hall continuing to issue licenses to same-sex couples will cause immediate and irreparable injury.

"The state has to say they are likely to win eventually and they need this injunction in the meantime to let the status quo continue," Hendricks said. "Both of those are difficult requirements for the state."

In the motion, Hughes wrote that since the U.S. Supreme Court ruled on the Windsor case in June 2013, "every court to evaluate marriage bans like Colorado's has found them unconstitutional, including decisions in the Tenth Circuit, 19 federal district court cases and two supreme court cases."

Tom Russell, a professor at the University of Denver who is also representing a couple married by Hall, said he agrees with Hall's assertion that recent court cases have shown it is not likely Colorado's gay marriage ban will stand for much longer.

"I agree with the broader context that the Colorado bans are unconstitutional, just as bans in other states have been found unconstitutional," Russell said. "The state has shifted from defending the ban on gay marriage to simply delaying allowing gay marriage to take place."

As for irreparable harm, according to the suit, Suthers is claiming Hall's actions results in "greater legal chaos" because "the public is left confused and uncertain regarding the issued marriage licenses' significance and effect."

But Hall in her response said that even if Suthers' assertion that the licenses she issued are invalid is true, the harm done to couples by giving them "false" licenses is less than the impact of not being able to marry.

"Even accepting the state's claim that such licenses are invalid, which Clerk Hall does not, such minor inconveniences pale in comparison to the lifelong injuries suffered by couples unable to exercise their fundamental right to marry."

Hall said in her response she is prepared to call witnesses who will testify the same-sex marriage ban has denied them certain rights and benefits opposite-sex couples have as well as stigmatizes and humiliates them.

Two couples married by Hall have also filed motions to intervene and become part of the case, saying Suthers is seeking to invalidate their marriage licenses and that they should have a chance to defend them.

"We're defending their marriage by challenging the state's ban on same-sex marriage," said Russell, who is representing one of the couples. "We're going to argue (the marriage licenses) are valid because the ban on gay marriage is unconstitutional."

Holli Berman signs her marriage license after marrying her partner, Marcia Cotlar, on Tuesday, July 8, 2014, at the Boulder County Clerk and Recorder's Office. The couple has been together 18 years. (Jeremy Papasso)

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